TMI Blog2019 (8) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... said cheque, the presumption under Sections 118 and 139 of the aforesaid Act came into operation in the present case - The presumptions that arose in full force against the applicant under Sections 118 and 139 of the aforesaid Act have not been rebutted in any manner by the applicant and, therefore, it cannot be said that the Courts below committed an error in convicting and sentencing the applicant. Since no error is found in the concurrent orders of conviction passed by the two Courts below, the present revision application is dismissed. Revision application dismissed. - Criminal Revision Application No.9 of 2013 - - - Dated:- 16-8-2019 - MANISH PITALE, J. Mr. A.M. Ghare, Advocate for Applicant. Mr. Aditya Deshpande, APP for non -applicant. JUDGMENT By this revision application, the applicant (original accused) has challenged the conviction and sentence imposed upon him by the two Courts below under Section 138 of the Negotiable Instruments Act, 1881. The applicant was sentenced by the Court of Judicial Magistrate First Class, Amravati, to suffer rigorous imprisonment for six months and to pay an amount of ₹ 1,30,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before the Sessions Court at Amravati. By Judgment and order dated 05/01/2013, the Sessions Court dismissed the appeal, thereby confirming the conviction while reducing the sentence imposed against the applicant. 6. The applicant filed the present revision application, challenging the said concurrent Judgments and orders. The revision application was admitted on 08/1/013 and sentence was suspended on the condition that the applicant would deposit sum of ₹ 98,000/ before the Trial Court within a period of 8 days from the date of the order, taking note of the fact that the applicant had already deposited ₹ 27,000/before the Appellate Court. Accordingly, the sentence stood suspended and the applicant was granted bail. 7. Mr. A.M. Ghare, learned Advocate appearing on behalf of the applicant submitted that the two Courts below failed to appreciate that the cheque in question had been issued by way of security. It was submitted that the admissions given in the cross -examination by the non-applicant demonstrated that he had adopted modus operandi of taking such cheques by way of security for transactions and thereafter returning the same after cash amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the non -applicant for the shop in question by way of aforesaid cheque for an amount of ₹ 1,25,000/and the details of the cheque, including the cheque number, were specifically stated in the sale deed. It was submitted that the shop in question was not only purchased in the name of the wife of the applicant, but the applicant himself had signed as a witness to the aforesaid sale deed. On this basis, it was submitted that the applicant could not escape liability in the present case, only on the basis that the signature on the cheque was on behalf of one Suraj Traders. It was further submitted that the complaint filed by the non -applicant could not be said to be defective because Suraj Traders was not made a party, because the applicant as the signatory of the cheque was very much a party to the complaint. It was further submitted that answers given by the applicant to the questions put to him under Section 313 of the Code of Criminal Procedure clearly demonstrate that he had conceded to various aspects indicating his guilt. As regards the Judgments relied upon by the learned counsel for the applicant, it was submitted that they were inapplicable to the facts of the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course that the holder of a negotiable instrument is a holder in due course : Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or accept or thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 139. Presumption in favour of holder : It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability. 11. A perusal of above quoted provisions shows that unless the contrary is proved, the presumption operated against the applicant and it was for him to prove that the cheque was not issued in discharge of legal debt or liability. 12. But, before examining as to whether the applicant was able to rebut the presumption that operated against him under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in fact the applicant himself who had purchased the said shop, but in the name of his wife. The relevant portion of the cross -examination reads as follows: It is correct to say that on 17/09/09 I purchased one shop from the complainant in the name of my wife under registered sale deed. The said sale deed is produced at exh.19, its contents are true and correct. I also put my signature on the sale deed as witness. 15. The applicant has also not disputed that he has signed the cheque. In this situation, merely because there is rubber stamp of Suraj Traders on the cheque in question, it would not lead to the applicant escaping liability in the present case, in view of specific admissions given by him. In any case, there is not a whisper in the evidence of the applicant that he has nothing to do with the said proprietary concern, despite statements in the complaint filed by the non-applicant that the cheque in question was specifically mentioned with cheque number in the registered sale deed, that it was signed by the applicant in the present case and that it showed the applicant as a proprietor of the said Suraj Traders. The fact that the complaint was fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid way of functioning of the non -applicant. 18. A perusal of the evidence on record shows that the registered sale deed, whereby the shop in question was sold to the wife of the applicant, specifically mentions in its contents that the entire consideration amount was paid to the non-applicant by way of the cheque in question. The cheque number was also specifically mentioned and the amount was stated. The applicant signed as a witness to the aforesaid registered sale deed. The evidence also shows that the applicant failed to adduce any cogent evidence in support of his contention that the consideration amount for the shop was actually paid by cash, on two different dates to the non-applicant. The non -applicant in the present case specifically denied in cross -examination that he had received cash amount from the applicant. Although the non -applicant did state in cross -examination that he had returned certain cheques to the said Satish Pund upon receiving cash, but a perusal of the evidence of the applicant shows that in cross -examination he conceded that the said Satish Pund did not purchase shop from the non -applicant in his presence and further that he h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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